White River Chair Co. v. Conn. River Power Co. of N.H.
| Decision Date | 02 November 1932 |
| Citation | 162 A. 859 |
| Court | Vermont Supreme Court |
| Parties | WHITE RIVER CHAIR CO. v. CONNECTICUT RIVER POWER CO. OF NEW HAMPSHIRE. |
Appeal in Chancery, Windham County; Allen R, Sturtevant, Chancellor.
Suit by the White River Chair Company against the Connecticut River Power Company of New Hampshire. Prom a decree for defendant dismissing the bill, plaintiff appeals.
Decree affirmed, and cause remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Herbert G. Barber, of Brattleboro, Clinton H. Blake, Jr., of New York City, and Marvelle C. Webber, of Rutland, for appellant.
Warren R. Austin and Austin & Edmunds, all of Burlington (F. J. Dunn, of Boston, Mass., of counsel), for appellee.
This is a proceeding in chancery in which the plaintiff, a Vermont corporation, seeks to perpetually enjoin the defendant from maintaining a power house on the westerly bank of the Connecticut river, hereinafter called the river, and a dam extending therefrom across the river, which it constructed and completed during 1909 at a point in Vernon about five miles southerly of plaintiff's premises, and for an accounting for damages.
The plaintiff alleges in its bill that from the time of a certain settlement made by the parties on July 15, 1924, mentioned therein, "to the present time the defendant has continued to operate its said dam and power house and addition thereto and superstructure thereon, wholly without right as to the plaintiff, so as to continuously cause water to overflow and seep through to and upon the lands of the plaintiff and in times of high water and freshets to cause debris, mud and silt to be deposited upon the lands and in and upon the buildings of the plaintiff and to cause great injury and damage to its lumber, manufactured stock, buildings, machinery and appliances and has caused great and irreparable injury to the business of the plaintiff in the sale of its manufactured products by reason of dampness in and about the plaintiff's premises which the plaintiff is unable to detect until after said manufactured goods have gone into the hands of its customers and others and has thereby caused and is causing great and irreparable loss to the plaintiff in the business world and of its reputation as a manufacturer," etc.
The plaintiff alleges further that such wrongful acts constitute "a continuing trespass," and that the court of chancery has jurisdiction to enjoin the same to prevent such trespass from ripening into an easement to the defendant and to prevent a multiplicity of suits.
There was a hearing before the chancellor. A finding of facts was filed, and there was a decree for the defendant dismissing the bill, with costs. The plaintiff appealed.
The plaintiff suffered substantial damage from the flood of 1927, and claimed below that it was caused by the defendant's negligence in the construction, maintenance, and operation of its power house and dam. A great deal of evidence was received on this question. The chancellor found: "The flood of November, 1927, which inundated the plaintiff's premises was an act of God, not foreseen, and of a magnitude and character not to be reasonably anticipated or foreseen by the defendant and there was no negligence of the defendant which effectually concurred with the act of God in producing the damage and injury suffered by the plaintiff in that flood."
No exception to this finding has been briefed by the plaintiff, so this phase of the case is not before us.
The following facts appear from the findings: The plaintiff and its predecessor have manufactured furniture since 1903 in a factory on the northeasterly portion of a lot owned by it on the west side of Vernon street in Brattleboro. This lot is approximately 520 feet long, measuring north and south, and 800 feet wide. The land to the north is slightly higher than plaintiff's lot, the land to the south is somewhat lower, and from the westerly boundary of the lot the land rises to a steep bank. The easterly line of the lot was about 700 feet westerly from the river before the erection of the dam. Vernon street, the plant of the Presby-Leland Granite Company, and tracks of the Central Vermont Railway lie between the lot and the river.
The plaintiff's main factory, a long wooden building, three stories high, was built in 1903 upon loamy silt which forms the intervale between the high bank westerly of plaintiff's lot and the river. It has a basement with a cement floor which is 7 feet deep and about 4 feet below the level of the ground outside the building. When the dam was built, there were ten machines in the basement which were used in the plaintiff's manufacturing business. There is an elevator which runs down to a pit about eighteen inches deep in the basement floor. At the time the factory was built, the water table in the ground forming the basement floor was somewhere below the floor.
Prior to the erection of the dam, the plaintiff's engine and boiler rooms and the basements of the factory and office buildings were dry and free from moisture.
When the factory building was erected, there was wet soil in the westerly portion of plaintiff's lot, caused by springs on the hill westerly of and adjoining the lot, which extended easterly about 25 feet from the westerly line. A water-bearing stratum came out of the hill near the lot. There was also a stream of water running through the southwest end of the lot, and it was wetter in this corner than northerly thereof. The source of this stream was a spring or springs about 50 feet northerly of plaintiff's southerly line. The bank there was full of springs. This stream ran in a ditch dug before the plaintiff located there and ran practically all the time a stream about one foot deep. The overflow from the springs above mentioned flowed through a ditch, which extended from the southwest to the southeast corner of the lot, to a culvert under Vernon street near the southeast corner of the lot, through the culvert, and then southerly into the river. There were springs and wet land southerly of the lot. The ground water northerly of the lot formed a pool northerly and easterly of the lot, and approximately 1,000 feet northerly thereof. There was wet land with aquatic plants growing in it just northerly of plaintiff's line. The contour of the land westerly of plaintiff's premises was an abrupt hill which extended westerly through a part of the village of Brattleboro to the watershed of Cascade brook, which flowed southerly of plaintiff's lot, and northerly to the watershed of Whetstone brook.
The defendant is a corporate entity resulting from the authorized consolidation of the Connecticut River Power Company, a corporation chartered and organized under the laws of this state, and the Connecticut River Power Company of New Hampshire, a corporation chartered and organized under the laws of New Hampshire. The object of the constituent corporations was identical, namely, the development of the water power of the Connecticut river for commercial purposes. Each was authorized to construct a dam or dams across the river within certain specified limits; and in most respects the powers conferred and the limitations imposed by their respective charters were in effect the same. See Vermont Valley R. R. v. Connecticut River Power Company of New Hampshire, 99 Vt. 397, 133 A. 367, where the legal status of the defendant as the consolidated corporation and its rights and liabilities under the provisions of the charters of the constituent corporations are considered so far as required by the issues in that case.
The defendant completed the construction of its dam and power house in the spring of 1909. The dam is of concrete construction, with a spillway 600 feet long. The height of the crest of the dam, that is the spillway, is 27 feet, and this is at an arbitrary elevation, according to the defendant's datum, of 118. The defendant began using flashboards, which are temporary structures, on the dam in July, 1909. Their height was gradually increased from time to time until June, 1913, when it was raised to 8 feet above the crest of the spillway.
In finding No. 8 the chancellor found: "Nothing in the construction or maintenance of this dam, including flashboards as used by the defendant, violates the provisions in either or both of the charters, as referred to in the Article 3 of these findings, as to the point or height beyond which the defendant shall not have authority to raise the waters of the Connecticut River."
The Vermont charter provides that the corporation of this state, "in the exercise of the powers granted by its said charter, may hold the flow of said river in storage, as may be necessary for the reasonable development and use of such water power."
Paragraph 9 of the findings is, in part, as follows: ...
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